As the newly revised ABA accreditation standards 301 and 302 now require law schools to clearly articulate and publish their learning outcomes for their students, so individual faculty members must do likewise. Yet it is not uncommon to see these learning outcomes statements that read like the table of contents of the textbook used to teach the course. To truly be effective in driving learning and teaching, learning outcomes must be targeted, concrete, measurable and active (not “learning about” but “learning how to”).
How do we most effectively choose and articulate these learning outcomes? In MAKING LEARNING WHOLE: HOW SEVEN PRINCIPLES OF TEACHING CAN TRANSFORM EDUCATION 83-89 (2010)., educational specialist David Perkins emphasizes that learning is most effective if learners “work on the hard parts.” Similarly, the UNDERSTANDING BY DESIGN framework, originally developed by Grant Wiggins and Jay McTighe, emphasizes beginning the search for course goals by looking for the “Big Idea” in the course. These are the ideas or themes that can be used throughout a legal career and that require a lot of work to master.
One of the most effective ways to uncover these “big ideas’ or ‘hard parts” is to focus first on unlearning outcomes – that is, preventing and addressing predictable misunderstandings in the course. Thus, for example, much of the first year of law school is devoted to “unlearning” the positivist philosophy of students who believe the law is resolutely determinate. These fundamental misunderstandings are persistent, difficult to overcome and block learning of new ideas. Students construct knowledge by building on prior understandings. If those prior understandings are incomplete or incorrect, new learning will be flawed as well. As summarized by NATIONAL RESEARCH COUNCIL, COMMITTEE ON DEVELOPMENTS IN THE SCIENCE OF LEARNING, HOW PEOPLE LEARN: BRAIN, MIND, EXPERIENCE, AND SCHOOL: EXPANDED EDITION 11 (2000), “teachers need to pay attention to the incomplete understandings, the false beliefs, and the naive renditions of concepts that learners bring with them to a given subject.”
In her new book, Building a Better Teacher: How Teaching Works (and How to Teach It to Everyone) ( 2014), Elizabeth Green reviews the research concluding that effective teachers (as measured by student learning gains) are those who are able to identify the reasons that students misunderstand and help them to unlearn those misunderstandings.
Some of the most fundamental misconceptions that students bring to a subject from their own experience (or from bad course outlines passed around from prior semesters) must be discovered in the classroom. Brief classroom assessment devices such as “minute papers” or statements for the students to complete can easily generate a range of incorrect or incomplete understandings for any given topic. The mission to discover student errors leads faculty to many of the best practices in teaching: regular interaction with students, frequent and meaningful feedback, and active learning strategies.
The power of an “unlearning” perspective on assessment improves student learning, but also quickly leads faculty to a deeper understanding of what assessment of student learning oucomes means. Assessment is not an end-point, a box to be checked, reported and forgotten, but is an iterative process of discovery and experiment that drives students and faculty learning alike. Assessment tools (such as quizzes, socratic dialogue, essays, simulations, and reflections) might be used to unearth student misconceptions. These misconceptions then become the basis for the learning outcomes around which one can build a course and assessments then can be used to determine the extent to which one is successfully dislodging misunderstanding and misconception and replace it with a solid framework mastery.
Many professors use simulation exercises in their teaching; not as many have ever taught a simulation course. What does it mean? What is required?
To meet Standard 303’s criteria under the new, six-credit experiential requirement, a simulation course must:
- be primarily experiential in nature
- integrate doctrine, theory, skills, and legal ethics
- engage students in performance of one or more of the professional skills identified in Standard 302
- develop the concepts underlying the professional skills being taught
- provide multiple opportunities for performance and
- provide opportunities for self-evaluation.
Additionally, under Standard 304, “[a] simulation course provides substantial experience not involving an actual client, that
(1) is reasonably similar to the experience of a lawyer advising or representing a client or engaging in other lawyering tasks in a set of facts and circumstances devised or adopted by a faculty member, and
(2) includes the following:
(i) direct supervision of the student’s performance by the faculty member;
(ii) opportunities for performance, feedback from a faculty member, and self- evaluation; and
(iii) a classroom instructional component.”
These two standards provide a relatively detailed list of requirements, but the very first item seems the least well defined. What does it mean for a course to be “primarily experiential in nature?” If a two-credit seminar course is enhanced with an additional hour of simulation activities, meeting all of the other listed requirements, is the resulting three-credit course “primarily experiential in nature?” All three credits?
Maybe the answer depends upon the degree to which the simulation is integrated into the teaching of doctrine. A course can ask students to think about the implications of doctrine from the perspective of the role they are assigned to play. If woven throughout the course, references to the simulation can enrich students’ understanding of the content, which they will then apply in the performance aspect of the course. Still, assuming the two credits of content are still being taught, is this course “primarily experiential in nature?” Or does this requirement mean simulation courses must be advanced-level options for students who have already completed a course introducing the content, such that the primarily experiential application of doctrine can take place? I don’t think that’s what it should mean.
Approaching simulation courses from design principles instead, several authors ask us to think carefully about the goals of our simulation courses and the ways in which we assess student performance. See, e.g., Roy Stuckey, Teaching with Purpose: Defining and Achieving Desired Outcomes in Clinical Law Courses, 13 Clinical L. Rev. 807 (2007); Paul S. Ferber, Adult Learning Theory and Simulations – Designing Simulations to Educate Lawyers, 9 Clinical L. Rev. 417 (2002); Jay M. Feinman, Simulations: An Introduction, 45 J. Legal Educ. 469 (1995). The Carnegie Report says, “Doctrinal teaching goes on informally as students engage the simulated cases, so that assignments used to teach practical lawyering skills also reinforce their learning of legal analysis.” Stuckey, supra at 823, citing Carnegie at 226-27. But surely doctrinal teaching can also take place more formally in a simulation course, provided it is integrated with the simulated role that makes the course primarily experiential.
In his recent op-ed for the National Law Journal, Ray Brescia discusses the need for upper-level classes in law school that afford students a chance to learn the art of the legal profession, and not just the tools of the trade. Read: As School Year Begins, Think Outside the Tort.
Let’s face it, the role that technology can play in the practice of law is becoming more evident – with predictive coding, eDiscovery, and companies like LexMachina that use legal analytics to, among other things, predict the outcome of patent litigation. But many in the legal academy still cannot conceive of how technology can change legal education. If you are in that camp or know others who are, let me suggest that we do not dismiss the potential for change in legal education without knowing more about the emerging field of edtech and the forces behind it. Want to learn more? Here are ten things you can do this year that might change your thinking about the role of technology in the future of legal education. The suggestions come from my article, which has other suggestions as well.
1. Catch up on some important reading. Read David Thomson, Law School 2.0: Legal Education for the Digital Age (2009). Also, read the work of Bill Henderson, including A Blueprint for Change, 40 Pepperdine L. Rev. 461 (2013) and Andrew P. Morriss & William D. Henderson, Measuring Outcomes: Post-Graduation Measures of Success in the U.S. News & World Report Law School Rankings, 83 Indiana L. J. 791 (2008). Read David Barnhizer’s article, Redesigning the American Law School, 2010 Mich. St. L. Rev. 249 (2010).
2. Read, too, assessments about how technology has impacted and will continue to impact higher education generally, works such as Disrupting College: How Disruptive Innovation Can Deliver Quality and Affordability to Postsecondary Education, and The Department of Education’s Meta-Analysis and Review of Online Learning Studies.
3. Learn about the millennial generation who are “born digital” and how their more networked and connected lives affect the way they approach learning. A great book on this topic is by John Palfrey and Urs Gasser of Harvard Law’s Beckman Center on Internet and Society, Born Digital: Understanding the First Generation of Digital Natives (2008). Think about the implications of the fact that between 2000 and 2002, the largest group of first time internet users were between two and five years old, placing the oldest members of this group in college now – and in law school soon. Begin to understand how the emerging “participatory culture” is changing what one needs to learn to be fully prepared to function in the twenty-first century. You can do this by reading Henry Jenkins, Confronting the Challenges of Participatory Culture: Media Education for the 21st Century (MacArthur Foundation).
4. Begin to explore the potential for law schools to employ teaching methods that use technology to a greatly enhanced degree. For example, read about flipping the classroom, a teaching methodology that blends online lectures (which students view at their own pace as homework) with in-class instruction, as it is used in K-12 education, Jonathan Bergmann & Aaron Sams, Flip Your Classroom: Reach Every Student in Every Class Every Day (ISTE/ASCD, 2012), or watch these videos on flipped learning in legal education. By migrating lectures to the web, flipped learning can free face-to-face classtime for active learning, including Socratic dialogues, drafting exercises, simulations and role plays.
5. Investigate innovations in adaptive learning, a technique using computer software first to assess what a student knows and then to adapt the content taught to the knowledge level of the student, thus providing a more personalized learning experience for each individual. Computer-based adaptive learning is already being used by the Kaplan test preparation company for college students planning to take the LSAT and GMAT; by Khan Academy for younger students; and by many companies, such as Knewton, for a wide range of users.
6. Consider the impact that gaming can have on education. Follow the work of Jeannette Eicks (Vermont) and Stephanie Kimbro (Stanford), both of whom are working on projects that involve gaming and law. Read James Gee, What Video Games Have to Teach Us About Learning and Literacy (2003); James Gee, Good Video Games and Good Learning, at http://dmlcentral.net/sites/dmlcentral/files/resource_files/GoodVideoGamesLearning.pdf. Educational games are available for a variety of topics, including civics, see http://www.icivics.org/ (a game-based website started for former Supreme Court Justice, Sandra Day O’Connor); climate change, see http://www.bbc.co.uk/sn/hottopics/climatechange/climate_challenge/; national conflicts, see http://www.peacemakergame.com/game.php; and even algebra, see http://www.dragonboxapp.com.
7. Monitor the impact that recent decisions by law schools to develop online programs for non-JD degrees has on programs at other schools, such as the decision by graduate tax law programs at, among others, Alabama, Georgetown, NYU, Villanova, and Boston University to offer their programs online. Read Distance Learning in Legal Education: A Summary of Delivery Models, Regulatory issues and Recommended Practices. Attend a meeting of the Distance Learning in Legal Education Working Group, organized by Vermont Law School professors Rebecca Purdom and Oliver Goodenough. The group meets three times a year, once in the fall (which is in a few weeks at William Mitchell School of Law), once during the AALS Annual Meeting, and a third time in the spring.
8. Monitor the effectiveness and reaction of law graduates who take online bar preparation courses such as Themis.
9. Explore some of the new apps being developed for iPads and Androids to teach legal concepts. Law Stack is an Apple app for legal research loaded with various federal statutes. Law School Dojo, by Stanford Law’s Margaret Hagan, is an app with quizzes on legal concepts for a range of subject matters, including contracts, torts, civil procedure and international law.
10. Register for and attend the 2015 AALS Clinical Conference, May 4-7 in beautiful Rancho Mirage, CA. The theme of the conference is the “New Normal.” One of the three tracks for the conference is devoted to the future in the “new normal,” both for the practice of law and for legal education. As to law practice, we hope to address how professors can understand the rapid and profound technological change that could well remake law practice and how those changes can advance our work for social justice. We want to explore how changes in service delivery and structure of law practices can and should impact our teaching. And we hope to address how professors can better use technological advances and insights from learning sciences in their teaching.
The internet, the driver of all the changes and developments noted above, is a technology and a tool that, for the reach and extent of its often disruptive and its often liberating effects, can be compared only with the printing press. When writing of Gutenberg’s invention, Elizabeth Eisenstein, a careful and meticulous historian of immense reputation, wrote (favorably quoting Renaissance scholar Myron Gilmore) in her two-volume magnum opus, The Printing Press as an Agent of Change, that “’[i]t opened new horizons in education and in the communication of ideas. Its effects were sooner or later felt in every department of human activity.’” As I explain in my recent article, I strongly believe that “[s]o too it is, or sooner or later shall be, with the internet.”
Are there things I am missing? Add them in the comments below.